From the archive, originally posted by: [ mmm ]
DON’T SPY ON ME
NYCLU’s SPY FILES CAMPAIGN
Are you under government surveillance for your political activities? You have a right to know — and the NYCLU has launched a campaign to help you take advantage of that right.
Documents recently obtained by the ACLU ( http://www.aclu.org/spyfiles) show that federal and state law enforcement agencies are using expanded powers after September 11, 2001, to target peaceful political protest groups for infiltration and surveillance.
New York has a long history of robust political dissent. In order to uncover possible government spying on political dissenters, the NYCLU has filed Freedom of Information requests ( http://www.nyclu.org/fbispyfilesbios/index.html) on behalf of itself and fourteen of New York’s most prominent political and religious groups. These requests should force the FBI and local law enforcement officials to turn over their records on these groups.
The federal Freedom of Information Act and the New York Freedom of Information Law are powerful legal tools to compel the government to disclose information. If you are a person or organization engaged in political protest or dissent, you can file your own request to find out if the government is spying on you.
Click here (http://www.nyclu.org/pdfs/foia_foil_request_kit.pdf) to download the NYCLU’s guide to filing your own Spy Files Request (requires the free Adobe Reader) — or use the online version below.
How to file a request
This summary does not constitute legal advice. It is intended to provide general guidance only. If you have specific legal questions, consult a lawyer.
About the Freedom of Information Act (FOIA) and the Freedom of Information Law (FOIL)
Enacted in 1966, the Freedom of Information Act (FOIA) is a federal law that establishes the public’s right to obtain information from federal government agencies. The Freedom of Information Law (FOIL) is a New York state law that establishes similar rights regarding New York state agencies. Any person or organization can file a FOIA or FOIL request.
To whom can I send a request if I think I’m being spied on?
You can send a request to any government agency that you think may be spying on you. This may include the Federal Bureau of Investigation, the Department of Defense, and local law enforcement agencies. For more information about how these agencies may be spying on peaceful protest activity, visit http://www.aclu.org/spyfiles.
The agencies you choose to request information from may depend on the reason you suspect you have been subjected to government surveillance. For example, documents obtained by the ACLU have shown that the FBI and local law enforcement agencies have targeted political protest groups and certain religious groups for surveillance and infiltration. The media has reported that the Department of Defense maintains records on anti-war groups and groups who protest abusive military recruiting tactics.
It is important to remember that if you are requesting records from a federal government agency (for example, the FBI or Department of Defense), you must file a request under the federal Freedom of Information Act (FOIA). If you are requesting records from a state or local agency (for example, your state or local police department), you must file a request under the New York Freedom of Information Law (FOIL).
How much does it cost to make a request?
Each agency sets up its own fees to cover search and copying costs for FOIA and FOIL requests. You may want to consult the agency to determine what fees will apply to you.
For a federal FOIA request, as long as you are a non-commercial requester, you will likely have to pay costs for searches that exceed 2 hours and duplication costs for more than 100 pages. In your request, you should state that you are not making the request for commercial purposes. If you plan to use the documents for litigation, however, you may not qualify as a non-commercial requester.
For a state FOIL request, an agency may charge up to 25 cents per page of copied materials but cannot charge for inspection, certification, or search for records. You have the right to inspect accessible records at no charge, so long as no part of the record is exempt from FOIL.
Under the federal FOIA law (but not under the state FOIL law), you may request a fee waiver. Fee waivers are granted if the requester can show that disclosure of the requested information is in the public interest and is likely to contribute significantly to public understanding of the government’s activities and operations. If you ask for a fee waiver, you should reiterate that you are not requesting the information for a commercial purpose and should explain how the documents will serve the public interest and further public understanding of specific government activity. Our sample FOIA requests contains suggested language for a Spy Files FOIA request fee waiver.
Inability to pay fees is not a recognized basis for a fee waiver. However, agencies are generally more likely to waive fees for smaller requests, so you may avoid fees by keeping your request as narrow as possible.
You may always specify in your letter a maximum amount you are willing to pay, or request that the agency inform you if fees will exceed any amount you specify.
What kind of information will I get?
You can obtain any “agency records,” which has been broadly interpreted by the courts to mean all types of documentary information within the possession and control of the agency, such as papers, reports, letters, films, photographs, and sound recordings. Physical objects are not covered.
It is important to understand that agencies are only required to provide documents that already exist, and are not required to create any new documents to answer your request. Agencies are also not obligated to provide answers to any questions you may have. They are obligated only to produce documents.
There are several exemptions to both the federal FOIA law and state FOIL law, creating categories of documents which the agencies are not required to disclose. The agencies may invoke some of these exceptions in response to your Spy Files request, including exemptions for classified documents and documents that implicate national security; documents revealing information about on-going law enforcement investigations or confidential informants; and documents dealing with internal agency memoranda and policy discussions. However, even if the agency claims that the documents you requested are exempt from disclosure under FOIA, you have the right to appeal that judgment, as explained below.
How do I make a request?
Your request must be made in writing and addressed to the appropriate officer of the particular agency from which you are requesting records.
You must state that it is a request under either the Freedom of Information Act or the Freedom of Information Law (depending on whether you are requesting information from a federal or state agency) and include a brief description of the documents you are requesting. You must include your name and address. Additional contact information is not necessary, but may help the agency contact you more easily. Some information about your organization is also helpful for FOIA requests, so the agency can determine the applicable fees.
You should frame the request as narrowly as possible, to avoid unnecessary delays and expense. Many agencies run computerized searches to find documents, so use key words and phrases in your request. Be as specific as possible with your language, and use the attached sample letter for guidance.
How quickly will I get a response?
Under the federal FOIA law, federal agencies are required to respond within 20 business days and inform you whether they grant or deny your request. They must then provide the requested documents within a reasonable period of time. However, because most agencies have a backlog of requests that they must process, it may take months or even years before you receive the documents. Although you should keep in contact with the agency to encourage them to process your request, patience is important.
You can also request expedited processing, which requires the agency to respond within 10 business days, either granting or denying your request. Your request will receive expedited processing if you can demonstrate that there is a life-threatening need for the information or that a delay could threaten the physical safety of any individual (not necessarily yourself). Alternatively, you may also get expedited processing if you are an organization primarily engaged in disseminating information and the request pertains to a matter of compelling need. Other agencies may consider additional grounds for expedited processing, so you should check their policies before drafting your request.
Under New York state FOIL law, an agency has 5 business days after the receipt of the request either to make the requested records available to you, deny the request, or acknowledge the request and state an approximate date when your request will be granted or denied. There is no provision under the state FOIL law for expedited processing.
Although FOIA and FOIL include limitations on how long an agency can take to satisfy a request for documents, the only real restriction is that they must produce the documents within a reasonable period of time. Because so many agencies face backlogs, the courts tend to be lenient in enforcing this reasonableness standard. But if you are patient yet persistent, you should receive the documents — or some documents — eventually
Can I appeal an adverse response?
Yes. You can file an appeal if the agency denies your request for documents under one of the statutory exemptions, or if no documents were found and you think that the agency’s search was inadequate, or if the agency ignores or fails to respond to your request within a reasonable period of time. Under federal FOIA law, you may also appeal a refusal to grant a fee waiver or a refusal to provide expedited processing.
You should first file an administrative appeal with higher officials within the agency. This constitutes writing an appeal letter to the appropriate agency appeals office, which the agency should identify for you in their response letter. You do not need a lawyer to file an administrative appeal.
If that appeal is rejected, or if the agency fails to respond to your appeal, you can file suit in federal court for a FOIA request or state court for a FOIL request, where the agency will bear the burden of justifying their denial of your request.
There may be deadlines for an administrative appeal or a statute of limitations for filing an appeal in court, so you should check with the agency or with a lawyer first. The courts generally require that you give the agency a reasonable opportunity to respond to your request before initiating judicial proceedings.
Sample FOIA/FOIL request letters
Sample FOIA request letter
Sample FOIL request letter