OGIS Issue Assessment: Commonly Requested Categories of First-party Records

Introduction

The Freedom of Information Act (FOIA), 5 U.S.C. § 552(h) directs the Office of Government Information Services (OGIS) to review agency FOIA policies, procedures and compliance; identify procedures and methods for improving compliance; and to offer dispute resolution services to requesters and agencies as a non-exclusive alternative to litigation. As the FOIA Ombudsman, OGIS plays a unique role in the FOIA process, identifying issues and recommending opportunities for changes to improve the FOIA process.

Background

Each day, people seeking records about themselves use the FOIA process to obtain their records as they navigate health care, employment, immigration, law enforcement or other issues that intersect in some way with the federal government.

Both the FOIA and the Privacy Act of 1974, 5 U.S.C. § 552a, grant a right of access to federal records. Most often, but not always, agencies consider requests to access one’s own records as Privacy Act requests, or “first-party” or “first-person” requests. The Privacy Act’s access provisions apply only to U.S. citizens and lawful permanent residents. Generally, federal agencies process access requests under both the Privacy Act and the FOIA to provide requesters with the greatest degree of access. If information is exempt from the access provisions of the Privacy Act, the agency will process the request under FOIA. When an agency processes a request under both laws, it may withhold information only if the requested information is exempt under both laws.

The Privacy Act and the FOIA are often read in tandem; The Privacy Act allows individuals to access records about themselves, while the FOIA allows the public to access government information.^[1] Law Professor Margaret B. Kwoka has studied the topic extensively and argues that first-party requests conflict with FOIA’s original legislative intent of transparency about government operations. She notes that first-person requests “are frequently vital to the requester’s interests . . . [t]hey do not, however, advance Congress’ primary goal in enacting FOIA: to promote democratic oversight of government activities.”^[2]

​Professor Kwoka divides first-party requesters into four broad categories: (1) those using FOIA as a stand-in for administrative discovery relating to a pending agency proceeding or civil litigation; (2) those trying to retrieve documents they need to apply for a government benefit; (3) those using FOIA for discovery relating to private benefits: they use it to obtain information useful for private litigation (such as workplace litigation) or for obtaining products on the private market (such as insurance policies); and (4) those who seek  historical files for personal use or personal interest.^[3]

FOIA and discovery provide entirely different avenues for obtaining information from the federal government. Discovery is used during litigation to obtain information, usually from an opposing party, while FOIA provides a general right of public access to records. A FOIA requester who is a private party litigant in a civil or a criminal matter is not entitled to greater FOIA access than the average FOIA requester.

Also noteworthy is that many first-party records contain names and other personally identifying information (PII) about other third-party individuals. Law enforcement records, for example, often contain the names of witnesses, suspects or individuals who are merely mentioned but are not the subject of the records. Immigration records frequently contain information about third parties, particularly in cases in which a “petitioner” files forms to request benefits on behalf of another person – i.e., a “beneficiary.” Protecting third-party information in all federal records remains a crucial government function regardless of the access method.

Why OGIS Did This Assessment

The 2018-2020 term of the FOIA Advisory Committee, a group of 20 FOIA experts from inside and outside the government appointed by the Archivist of the United States, studied first-party requests and noted in its July 2020 final report that “many government agencies have come to rely on FOIA to address … needs for access to information by the public beyond the worthy goals of transparency and accountability [for all] originally contemplated by Congress.”^[4]

The Committee’s final report cited Professor Kwoka’s research on first-party requests at the Veterans Health Administration; the Social Security Administration; the Equal Employment Opportunity Commission; and the three Department of Homeland Security components that enforce civil immigration law (Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS)). In light of the effect of first-party requests on the FOIA process at those agencies, the FOIA Advisory Committee recommended that OGIS and the Office of Information Policy (OIP) at the Department of Justice ask agencies to identify common categories of records requested frequently under the FOIA and/or Privacy Act by or on behalf of individuals seeking records about themselves. The Committee’s recommendation seeks to help agencies explore and consider alternative and more efficient ways for requesters to access records about themselves. (See FOIA Advisory Committee Recommendation No. 2020-14).

This report identifies common categories of records requested frequently under the FOIA and/or Privacy Act by – or on behalf of – individuals seeking records about themselves and completes OGIS’s work on FOIA Advisory Committee Recommendation No. 2020-14. OGIS will continue to monitor the issue.

What OGIS Reviewed

To fulfill  FOIA Advisory Committee Recommendation No. 2020-14, OIP asked agencies that received more than 50 FOIA requests in fiscal year (FY) 2019 to answer the following in their 2021 Chief FOIA Officer (CFO) Reports: Does your agency frequently receive common categories of first-party requests? If so, please describe the types of requests and if your agency has explored establishing alternative means of access to these records outside of the FOIA process?^[5]

OGIS reviewed the responses of the 70 agencies that answered this question in their 2021 CFO Reports and analyzed individual agency and component efforts regarding categories of information that were the subject of first-party requests and agency processes for responding to such requests.

We note that agencies are not required to report on the number of first-party requests they receive each year although some agencies do track this information on their own. At USCIS, for example, requests for Alien Files (A-Files) or certain immigration records within A-Files, account for a vast majority of records requests – 99 percent when OGIS assessed the USCIS FOIA program in FY 2018.^[6] (The A-File is the official government record that contains information regarding transactions involving an individual as they pass through the U.S. immigration and inspection process.) 

The agencies’ responses to the CFO Report first-party inquiry mirror what the 2018-2020 term of the FOIA Advisory Committee observed: There are numerous reasons why citizens (and non-citizens) require access to government information and records other than to hold the government accountable.

A copy of the data from our review, including the names of agencies that submitted 2021 Chief FOIA Officer Reports, links to the reports, the number of FOIA requests processed in FY 2020 (the most recent year for which data was available), whether the agency frequently receives first-party requests, the categories of commonly requested records, and whether the agency has established alternative means of access to records outside of the FOIA process is available on this spreadsheet.

Finding 1: A Majority of the Agencies that Submitted Chief FOIA Officers Reports in 2021 Frequently Receive First-party Requests

Of the 70 agencies that submitted CFO Reports in 2021, 61 percent reported that they frequently receive first party-requests. Of the agencies that reported frequently receiving first-party requests, 89 percent received more than 100 FOIA requests in FY 2020.

Figure 1: Percentage of agencies that submitted 2021 Chief FOIA Officer Reports and frequently receive first-party requests

Finding 2: First-party Requesters Frequently Request General Categories of Records Maintained by Most Agencies

An analysis of the 2021 CFO Report data shows that agencies frequently receive first-party requests for general categories of records maintained by most agencies. Table 1 lists the categories of records maintained by most agencies.

Table 1: Categories of Records Maintained by Most Agencies and Frequently Sought by First-party Requesters*
*Please note the table headers are clickable, sort the table by clicking the column header.

Finding 3: First-party Requesters Frequently Seek Access to Unique Records Maintained by Specific Agencies

A review of agency responses to the 2021 CFO Reports shows that agencies frequently receive first-party requests from individuals who have interacted with the agency and seek particular benefits. Table 2 lists categories of records frequently requested by individuals seeking records from particular agencies.

Table 2: Categories of Agency-Specific Records Frequently Sought by First-party Requesters According to 2021 Chief FOIA Officer Reports*
*Please note the table headers are clickable, sort the table by clicking the column header.

Endnotes